By Kellie Mejdrich, CQ Roll Call
February 24, 2016 -- At a budget hearing on Wednesday, Health and Human Services Secretary Sylvia Mathews Burwell came under fire from House Republicans for disputed payments to insurers.
Rep. Joe Pitts, R-Pa., who chairs the Energy and Commerce Health Subcommittee, dropped a memo in front of Burwell from the Congressional Research Service (CRS) that he said suggested the agency's implementation of a reinsurance payment program required under the health care law was illegal.
"CRS has concluded that your action to divert billions to insurance companies appears to be unlawful. Did your department receive any pressure from insurance companies to divert billions from taxpayers to pay off insurers?" Pitts said.
He also asked Burwell whether former Centers for Medicare and Medicaid Services (CMS) administrator Marilyn Tavenner, who left the federal agency to work for the health insurance lobby, pressured her or other officials on the issue. Tavenner is now the head of America's Health Insurance Plans, which represents insurers.
Burwell fired back that the program was designed to create downward pressure on health care costs, given that the president's health care overhaul provided insurance to new and potentially expensive individuals. She said she hadn't seen the memo and would need to read it to respond to it.
"We believe we do have the statutory authority with this issue," Burwell said, adding that "the consumer, and the citizen, is what we put at the center."
The transitional reinsurance program is a temporary program designed to mitigate the risk for insurers of taking on especially expensive health care enrollees in order to keep prices down, according to the Congressional Research Service report. At dispute is a health care law requirement for certain payments to the Treasury. The CRS report examined the legal authority of CMS to prioritize reinsurance claimants over payments to the Treasury.
The reinsurance program is funded by a tax on health insurance premiums. According to CRS, the amount was $63 per person in 2014, $44 for 2015, and $27 for 2016.
Attacks on Burwell from Republicans weren't limited to the Energy and Commerce Committee, which scrutinized the agency's fiscal 2017 request that includes $82.8 billion in discretionary budget authority.
As Burwell took the hot seat, House Ways and Means Chairman Kevin Brady in a news release also launched criticism at the administration's top health official for not providing timely documentation on the agency's decision to, as the committee characterized it, divert Treasury payments to fund the transitional reinsurance program.
"HHS's flagrant violations were part of a concerted effort to keep insurers from exiting the Obamacare exchanges and the American people deserve answers," the Texas Republican said. "Secretary Burwell had until February 23rd to explain her department's decision to misuse billions of taxpayer dollars, but she failed to meet the deadline. The Secretary should promptly provide the information we requested."
At Energy and Commerce, Rep. Edward Whitfield, R-Ky., asked Burwell to respond to the tax-writing committee, as well as his panel.
"After a year of asking for these documents, Ways and Means still has not received them and Energy and Commerce still has not received them," Whitfield said.
But Burwell countered that the agency had "been responsive," and had worked closely with staff on both committees.
The dispute on the reinsurance program comes as the House is engaged in a lawsuit against the Obama administration for another dispute related to paying insurance companies.
In that case, legal counsel with the House of Representatives shook loose new ammunition for their case in the president's fiscal 2017 budget request, after the administration included updated dollar figures from the Treasury on those payments that House lawmakers consider unconstitutional.